In re Preston L.

Court of Appeals of Tennessee, Nashville

September 27, 2017

IN RE PRESTON L.

Session August 22, 2017

Appeal
from the Circuit Court for Sumner County No. 2015-CV-1102 Joe
Thompson, Judge.

Mother
and stepfather filed a parental termination action against
the father of a minor child, and the trial court terminated
the father's parental rights on the following grounds:
(1) incarceration under a sentence of ten years or more and
the child was under the age of eight when the sentence was
entered; (2) willful failure to support during the four
months prior to incarceration; and (3) wanton disregard. We
reverse the trial court's determination that the
petitioners presented clear and convincing evidence to
support grounds of willful failure to support and wanton
disregard. We affirm as to the ground of incarceration under
a sentence of ten years or more and as to the trial
court's best interest determination.

Tenn.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part and Reversed in Part

Landon
J.L. ("Father") and Ashley K.R.
("Mother") are the parents of Preston, born in
September 2003. Father is currently incarcerated in Ohio. On
October 1, 2015, Mother and Stepfather, Nicholas C.R., filed
a petition for termination of Father's parental rights
and for step-parent adoption. In their petition, Mother and
Stepfather alleged that Father abandoned the child in the
following ways:

a. He is incarcerated for a period of more than ten (10)
years and will not be released from prison until after the
child reaches majority on September 23, 2021; thus the Father
has willfully abandoned his child pursuant to T.C.A. §
36-1-113(g)(6).

b. He has willfully failed to pay child support for four (4)
months prior to the time he was charged, convicted, and
incarcerated; thus Father has abandoned this child pursuant
to T.C.A. § 36-1-102(1)(A)(i) and (iv) by his willful
failure to pay child support.

c. He has willfully failed to visit for four (4) months prior
to the time he was charged, convicted, and incarcerated; thus
Father has abandoned this child pursuant to T.C.A. §
36-1-102(a)(A)(i) and (iv) by his willful failure to visit
his child.

d. He has engaged in conduct prior to his incarceration that
showed a wanton disregard for the welfare of his child
pursuant to T.C.A. § 36-1-102(1)(A)(iv).

Father
filed a response to the petition, and the trial court
appointed counsel to represent him.

In
April 2016, Father filed a motion to dismiss the termination
petition on the grounds that the petitioners had failed to
respond to his request for discovery that was served on them
in December 2015; and that more than six months had passed
since the filing of the petition and the matter had not been
heard, contrary to the provisions of Tenn. Code Ann. §
36-1-113(k). A few days later, the petitioners filed a motion
to set the case for trial. The trial court heard Father's
motion to dismiss in May 2016 and, in an order entered on May
19, 2016, denied the motion. In an order entered on May 23,
2016, the case was set for trial on September 16, 2016.

On
September 1, 2016, Father filed a motion to continue the
final hearing to July 2017 on the grounds that he "may
be eligible for release under Ohio 'Judicial
Release'" in March 2017. Once released from
incarceration in Ohio, Father would have to serve eighty-two
(82) days in prison in Indiana. Father argued that, if he
were released early, he would "be available to
participate in person" in the termination proceedings;
he, therefore, requested that the court "continue the
matter so that he may have an opportunity to be present in
court to defend his parental rights." Father's
motion was heard on September 8, 2016, and the trial court
denied the motion, reasoning that there was no guarantee that
Father would be released early and that it was not in the
child's best interest to continue the matter. Father
would be allowed to participate by video conferencing, if
possible.

The
case was heard over two days in September and October 2016.
Father participated by telephone. The court heard testimony
from Mother, Preston, Stepfather, and Father. The trial court
determined that Mother and Stepfather had proven three of the
four grounds by clear and convincing evidence: (1)
incarceration with a sentence of ten years or more when the
child is under eight (8) years old, pursuant to Tenn. Code
Ann. § 36-1-113(g)(6); (2) willful failure to support
during the four months preceding incarceration, pursuant to
Tenn. Code Ann. § 36-1-102(1)(A)(i) and (iv); and (3)
wanton disregard, pursuant to Tenn. Code Ann. §
36-1-102(1)(A)(iv). The court further found that termination
was in the best interest of the child. The court, therefore,
ordered that Father's rights be terminated and that
Stepfather be allowed to adopt the child.

On
appeal, Father raises the following issues:

(1)Whether the trial court erred in finding that Father
willfully failed to pay child support in the four-month
period immediately preceding his incarceration.

(2)Whether the trial court erred in finding that Father
displayed wanton disregard for his child prior to his
incarceration.

(3)Whether the trial court erred in allowing the termination
petition to be heard beyond the six-month time frame
contemplated in Tenn. Code Ann. § 36-1-113(k) and in
denying Father's motion to dismiss; and whether the trial
court erred in denying Father's motion for a continuance
pending Father's possible early release.

(4)Whether the trial court erred in finding that termination
of Father's parental rights was in the child's best
interest.

Standard
of Review

Under
both the federal and state constitutions, a parent has a
fundamental right to the care, custody, and control of his or
her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 250
(Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d
170, 174-75 (Tenn. 1996). This right is not absolute,
however. If a compelling state interest exists, the state may
interfere with parental rights. Nash-Putnam, 921
S.W.2d at 174-75 (citing Nale v. Robertson, 871
S.W.2d 674, 678 (Tenn. 1994)). Our legislature has enumerated
the grounds upon which termination proceedings may be
brought. See Tenn. Code Ann. § 36-1-113(g). A
parent's rights may be terminated only where a statutory
ground exists. In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998).

Because
terminating parental rights affects fundamental
constitutional rights, termination cases require a court to
apply a higher standard of proof. State Dep't of
Children's Servs. v. A.M.H., 198 S.W.3d 757, 761
(Tenn. Ct. App. 2006). First, a court must determine by clear
and convincing evidence that at least one of the statutory
grounds for termination exists. Tenn. Code Ann. §
36-1-113(c)(1); In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002). After a court makes this determination, a court
must find by clear and convincing evidence that termination
is in the best interest of the child. Tenn. Code Ann. §
36-1-113(c)(2); In re Valentine, 79 S.W.3d at 546.
"Clear and convincing evidence 'establishes that the
truth of the facts asserted is highly probable, and
eliminates any serious or substantial doubt about the
correctness of the conclusions drawn from the
evidence.'" In re Serenity B., No.
M2013-02685-COA-R3-PT, 2014 WL 2168553, at *2 (Tenn. Ct. App.
May 21, 2014) (quoting In re M.J.B., 140 S.W.3d 643,
653 (Tenn. Ct. App. 2004) (citations omitted)).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Because
of the heightened standard of proof required in termination
cases, we must adapt the customary standard of review
established by Tenn. R. App. P. 13(d). Id. In
accordance with Tenn. R. App. P. 13(d), we review the trial
court&#39;s findings of fact de novo with a presumption of
correctness unless the evidence preponderates otherwise.
Id. Next, we must determine whether the facts
establish by ...

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